Monday, February 15, 2010

In America, a defendant charged with a crime is free to exercise his rights without any fear that the State will retaliate against him by filing additional and/or more serious charges against him. Should the defendant exercise a right, such as filing a motion to dismiss, and the State then subsequently files additional and/or more serious charges against the defendant, then the State will be guilty of illegal "vindictive prosecution" and all the charges must be dismissed due to the violation of the defendant's due process right to exercise all of his rights without fear of retaliation by the State.

This is a fundamental principle of law, for when the exercise of one's rights carries with it the threat of retaliation, then there are no rights, only invitations to disaster.

In America, the trial court has the jurisdiction to order subpoenas and other orders necessary to the defense so that the defendant can acquire and/or secure the integrity and preservation of evidence he intends to use in his defense at trial. Any denial of its jurisdiction over such matters by the court so as to deny the defendant his rights to obtain and/or secure evidence in his favor is a violation of the defendant's due process rights which prevents him from obtaining a fair trial and which obstructs justice and which contributes to the obstruction of justice, such that it is grounds for the dismissal of the indictment against the defendant.

The Brendon O'Connell case involves two separate issues, one of which must be determined by the Judge, and one of which comes solely under the discretion of the Jury.

Pursuant to a pretrial motion to dismiss the indictment on the grounds that it fails to allege an offense, the Judge must determine whether or not the LAW states that the Jews are a race, and only a race, with sufficient clarity to inform the public, and provide the public with legal notice, that the LAW considers the Jews to be race and only a race.

The question of whether or not the Jews are IN FACT a race, and can only be considered a race, and cannot be considered a religious group, and whether or not Brendon O'Connell intended the term "Jews" to mean a race, or instead a religious group, are questions of FACT which must be, and which can only be determined by the Jury.

There is an all important distinction between determining whether or not the LAW states that Jews are a race, and only a race, for the purposes of the determining the sufficiency of the indictment pursuant to a pretrial motion to dismiss; and the entirely separate question of determining whether or not the Jews are IN FACT a race and/or can be considered a religious group for the purposes of determining O'Connell's guilt or innocence at trial.

The court has the authority to determine if the charges are legally sufficient to proceed, which will involve the question of whether or not the LAW states that Jews are a race. However, the questions of whether or not the Jews can be considered a race, and whether or not the Jews can be considered a religious group, are also questions of FACT for the Jury to decide when considering guilt or innocence based upon the FACTS of the case.

The Judge only has the lawful authority to determine whether or not the LAW states that Jews are a race and only a race with sufficient clarity to provide the public with notice that it is illegal to criticize the Jews. The Judge does not have the lawful authority to determine whether or not the Jews are IN FACT a race.

The Jury has sole jurisdiction over questions of FACT, such that whatever the Judge rules regarding the LAW in relation to a pretrial motion to dismiss the indictment for its failure to allege an offense, the Jury must still determine, and has the sole discretion to determine, whether or not Jews are IN FACT a race, and whether or not the term "Jews" can instead, exclusively or also refer to a religious group, and whether or not O'Connell intended to refer to a race or a religious group when making the alleged statements.

The Judge is only lawfully authorized to determine whether or not the LAW unequivocally states that Jews are a race and if the LAW states that the term can only be applied to a race. The question of FACT remains; and the LAW, if it states that the Jews are a race and only a race, is in error IN FACT and the Jury is entitled to rule on that issue, though I do not believe that the LAW anywhere states that the Jews are a race and only a race. Nor does the LAW anywhere define "race" with sufficient precision to unambiguously inform the public that the LAW states that Jews are a race and only a race.